Why are Lasting Powers of Attorney (LPAs) important?
If you are taking care of someone who has lost capacity and there is no LPA in place, you may face many uphill hurdles as you do not have the legal authority to deal with their affairs properly.
Some people assume that if the worst should happen, and they are unable to look after themselves and make their own decisions concerning their property and finances and health and welfare, that their friends and family will be able to do this for them. However, this isn’t the case.
If you want to have control over who would make these decisions for you in the catastrophic event you lost the capacity to do so yourself, you would need to put your Lasting Powers of Attorney (LPAs) in place which will nominate the people you would want to make such decisions.
There are two types of powers of attorney that deal with different aspects of your personal life:
- Property and financial affairs
- Personal health and welfare
What happens if I don’t have a Lasting Power of Attorney and I lose mental capacity?
If you lose your mental capacity, then the Court of Protection can appoint someone to be your deputy to make these decisions for you.
Imagine a situation where you hold joint assets which may not be able to be sold or dealt with, without the consent of the Court of Protection. This could lead to considerable financial hardship for the joint owner and you, until the deputyship has been processed and granted by the Court of Protection.
Anyone over 18 can apply to become your deputy, providing nobody objects to their application, and, in the case of the Property and Financial Affairs LPA, they have the requisite financial skills. Sometimes there are objections to the appointments and the court can appoint the local council or even professional deputies who will be able to charge their fees to you.
A deputy’s powers are very limited compared to someone who has been appointed with powers of attorney also the application process can be extremely costly and time consuming. There is an annual fee (of up to £2,500) for the deputy to renew their deputyship.
Can I get an LPA for someone who has lost capacity?
Unfortunately not. The person appointing the attorney has to have mental capacity at the time they grant the LPA.
However, you may still be able to apply to the Court of Protection to become their deputy to make limited decisions on their behalf.
The consequences of not having an LPA in place.
- You have no control who will make critical decisions for you concerning your property and financial affairs or your health and welfare.
- The court will decide the scope of powers granted to your deputy.
- Even if a trusted family member were to make a deputy’s application, this could be refused and the council or a professional deputy may be appointed instead.
- Cost will be considerably higher and you will have to pay them. Your family will have to pay extra to apply for and maintain a deputyship.
- You may not be able to sell jointly held assets until the court appoints a deputy.
What happens to the LPA when I die?
Powers of attorney cease upon the LPA donor’s death. Once this happens, the attorney can no longer continue to act or make decisions about the LPA donor’s finances, property or other issues.
The power to act in the administration of the deceased’s estate will be set out in the deceased’s Will where Executors will be nominated. If the LPA donor dies without a will, the estate will be administered according to the rules of intestacy. In such a case an attorney may apply to become an administrator of the estate, subject to certain conditions.
Please contact us for further information and a quotation.
Kathryn Vasey at our Catterick office
Lydia Hardy at our Leyburn office
EXPERT LEGAL ADVICE IN THE HEART OF NORTH YORKSHIRE